ABA Health eSource
 December 2006 Volume 3 Number 4

Healthcare: A Policy or a Human Right?
by Dominic S. DePersis 1 , Broome Community College, Binghamton, NY

Dominic S. DePersisThe population of the United States of America is estimated at 300,061,531 ( U.S. Census Bureau website, 10/25/2006). The world population is estimated at 6,552,654,622 ( U.S. Census Bureau website, 10/25/2006). It is estimated that every 7 seconds the resident population of the United States increases by one person ( U.S. Census Bureau website, 10/25/2006).

Unfortunately, in our society, not all have equal access to their basic human needs – in this discussion, healthcare services. Over 44 million Americans do not have health insurance today and millions more are only a job change or illness away from loosing their coverage. Diane Rowland, Sc.D in her article "Uninsured in America" published in 2004 states: "The uninsured are predominantly adults from low-income working families – three-quarters of the uninsured are between age 18 and 65; two-thirds have incomes below 200% of the federal poverty level or $28,696 for a family of three in 2002; and the majority (8 in 10) come from working families" (p.2).

There are several international documents on the subject of human rights. Treaties specifically focused on human rights date back to 1948 and the Genocide Convention and forward to the Convention on the Right of the Child in 1989. Of the international human rights agreements in existence, several include rights for all people to healthcare of both a preventive and a curative nature.

The countries of the world, as represented in the United Nations, undertook to formally recognize several human rights in documented form in 1948. The relevant document is the United Nations Universal Declaration of Human rights, which states in Article 25(1) that: "Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including ... the right to social security in the event of unemployment, sickness, disability, widowhood, old age or other lack of a livelihood in circumstances beyond his control."

The United States is the only industrialized, advanced country not to have a universal healthcare system. By universal I mean a system that provides healthcare and mandates that the program benefits be equally available to every citizen of the country. An important source that supports the right of all people to access to healthcare is the International Covenant of Economic, Social and Cultural Rights. This Covenant contains Article 12(2), of which section 2(d) is particularly illustrative of the responsibility of all governments to provide for the health and well being of all of their citizens. Article 12(2) says that all States shall take those steps necessary for (d) "The creation of conditions, which would assure to all medical attention in the event of sickness". The President of the United States, designated by the Constitution to sign all treaties, did sign the document in 1977.

The United States has not ratified the previously quoted Covenant, the United States has signed and ratified the International Convention for the Elimination of all Forms of Racial Discrimination. At first mention, this international agreement may not seem applicable to the discussion in this article. However, the Convention does indeed have a provision for healthcare. The Convention contains Article 5, which reads: "In compliance with the fundamental obligations laid down in Article 2 of this Convention, State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law notably in the enjoyment of the following rights ... section (e) ... (iv). The right to public health, medical care, social security and social services." Although it is an amplification to argue that this Article expressly spells out the rights of all people to equal access to healthcare and social security language in this document and several other international agreements is strong evidence that they are human rights in international law. In addition, in the United States where there is no guarantee to healthcare, there is evidence that racial minorities are uninsured in greater numbers than others. Blacks, persons of Hispanic origin, and people with low incomes are more likely not to have health insurance than other groups (U.S. Dept. of Health and Human Services, Office of Minority Health Resource Center).

Additional evidence that healthcare and social security are human rights in international law is the Declaration of Alma-Ata. The Declaration was adopted in 1978 under the joint sponsorship of the World Health Organization and the United Nations Children's Fund. The Declaration was endorsed one year later by the United National General Assembly. Section 2 of the Declaration states that "the existing gross inequality in the health status of the people, particularly between developed and developing countries is politically, socially, and economically unacceptable and is therefore, of common concern to all countries." Section 5 states that governments have a responsibility for the health of their people, which can be fulfilled only by the provision of adequate health and social measures. The World Health Organization states in the document that primary healthcare is the place to begin in order to work toward the health of all people. The General Assembly endorsed the Declaration, stating that it supports the World Health Organization's commitment to achieving health for all by the year 2000.

The clear majority of the countries of the world have a unified view that healthcare and social security are human rights. Regarding the International Covenant on Economic, Social and Cultural Right, the United States is joined only by Cape Verde, China, Liberia, Sao Tome and Principe in not ratifying or acceding to the Covenant. This minority makes up only six countries out of 185. Custom in international law is formed by longstanding practice and recognition of right by the nations of the world. The sense that access for all people to healthcare and social security is a human right has been formally agreed to by all the countries of the world except China (which has a reputation for nonrecognition of human rights in general), and a few small countries in far corners of the world. In the United States the President has even recognized the rights of the Covenant as international law that is consistent with the laws of the United States. It is accurate to state that the President is a representative of the American people. Article II, Clause 8 of the Constitution of the Untied States of America gives the President equal power and obligation to uphold the Constitution as the other two branches of our government.

Citizens of the United States of America are entitled to the rights recognized by their government. The United States of America should strive to supply all citizens with a system of healthcare that aims to prevent and redress negative health issues regardless of the individual's ability to fully contribute to gross cost.

1 Dominic S. DePersis earned his Bachelor of Science degree in Business Management at Binghamton University; Juris Doctor degree at Syracuse University College of Law; and Doctorate of Juridical Science degree with principal field of research in international law from Northwestern California University School of Law. The author is an Attorney licensed to practice law in New Jersey, New York, Minnesota, District of Columbia, and before the United States Court of International Trade. The author is Associate Professor of Business Law at Broome Community College (SUNY).